Wilmington Housing Authority v. Williamson

• Decision Date: 16 March 1967
• Citation: 228 A.2d 782
• Parties: The WILMINGTON HOUSING AUTHORITY, a corporate body organized and existing pursuant to Chapter 160, Revised Code of Delaware, 1935, defendant Below, Appellant, v. Hazel Lynch WILLIAMSON, as next friend of David Robert Williamson, and Hazel Lynch Williamson, Individually, Plaintiffs Below, Appellees.
• Court: Supreme Court of Delaware

Page 782

228 A.2d 782

The WILMINGTON HOUSING AUTHORITY, a corporate body organized and existing pursuant to Chapter 160, Revised Code of Delaware, 1935, defendant Below, Appellant, v. Hazel Lynch WILLIAMSON, as next friend of David Robert Williamson, and Hazel Lynch Williamson Individually, Plaintiffs Below, Appellees.

Supreme Court of Delaware.

March 16, 1967.

Appeal from the Superior Court in and for New Castle County.

William F. Taylor, of Young, Conaway, Stargatt & Taylor, Thomas Herlihy, Jr., and Morris Cohen, Wilmington, for appellant.

Vincent A. Theisen, of Theisen & Lank, Wilmington, for appellees.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

WOLCOTT, Chief Justice.

This is an appeal in a personal injury action from a judgment for the plaintiffs taken by Wilmington Housing Authority (hereafter Authority), one of the co-defendants. ^* The cause was before us previously as an appeal from the grant of summary judgment for the Authority. We reversed and sent the cause back for trial. Williamson v. Wilmington Housing Authority, Del., 208 A.2d 304.

The plaintiffs in the case are a minor, aged four years at the time of the accident, suing by his next friend, and the minor's mother, suing to recover past and future medical expenses. The minor lost his right hand and foot and was awarded damages of $200,000. The mother was awarded damages of $50,000 but accepted a remittitur of $15,000 to avoid the award of a new trial.

The Authority urges that the denial of its motion for judgment notwithstanding the verdict was error because,

(1) There was no evidence of a dangerous condition on its premises which caused the injury;

(2) That a release provision in the lease agreement between it and the adult plaintiff bars any recovery by her;

(3) That the doctrine of sovereign immunity bars the claims of both plaintiffs in whole, or in part, by reason of 18 Del.C. § 516.

In the alternative, the Authority urges that a new trial should be directed because,

(1) The admission of evidence of a prior fall by a different child was prejudicial;

(2) The admission into evidence of average lifetime earnings was prejudicial;

(3) The verdict in favor of the adult plaintiff is excessive as a matter of law;

(4) The verdict in favor of the minor plaintiff is excessive as a matter of law.

We take up for consideration the various matters presented to us in the order

in which they have been stated. The contention that there

was no evidence of a dangerous condition on the

Authority's premises.

Briefly stated, the theory of the plaintiff's case is that the Authority knowingly permitted a path from a play area for children on its premises leading to a steep and rough descent to railroad tracks to remain unfenced; that this was a dangerous condition, and that this was a proximate cause of the injuries.

The nature of the premises are fully set out in Williamson v. Wilmington Housing Authority, supra, and in the interest of brevity will not be repeated here. The key circumstance in the matter is an apparent path between shrubbery commencing on the Authority's premises and running a short distance to the railroad right-of-way at which point it descends precipitously to the railroad tracks. In the first appeal we held that the question of whether or not this condition was dangerous presented a proper jury question, and sent the cause back for trial. Quite obviously, the jury found the condition to be dangerous.

The Authority, however, argues that this does not dispose of the matter because there is no evidence that the dangerous condition had any causal connection with the minor's injuries. Pointed to is the statement in our prior opinion, at the summary judgment stage, that it was uncontroverted that the minor slipped and fell down the path and rolled under the approaching train. It is argued that there is no evidence whatsoever as to this and, hence, no causal connection between the accident and the path has been established.

The plaintiffs offered the testimony of two witnesses, husband and wife, who lived next to the home of the plaintiffs. These witnesses testified that at the time in question they were looking at the minor and a friend of his playing about the area of the beginning of the path where it passed through the shrubbery. They had been watching for some minutes.

The game the children were playing consisted of moving along the path through the shrubbery, waving at passing trains, and then darting back to hide behind the shrubbery. Both witnesses testified they kept the children under constant observation except for momentary lapses when they would turn their eyes aside.

Both witnesses also testified that just preceding the accident they saw the minor standing in the path when their attention was diverted for a few seconds, and when they looked back the minor had disappeared and his companion was calling something back to them. Neither witness was able to state whether or not the minor walked, ran, slipped, jumped or was pushed down the embankment by his companion. Both witnesses were positive, however, that at one moment they saw the minor standing in the path and that one or two seconds later he had disappeared from view.

One of the witnesses testified that he ran to the bank and looked down and saw the minor crawling back up the slope. He, by that time, had suffered his injuries.

The Authority argues, citing Ciociola v. Delaware Coca-Cola Bottling Co., 3 Storey 477, 172 A.2d 252, that this evidence is insufficient to make the path an item of significance with respect to the injuries of the minor. The argument is that when a conclusion of negligence is to be inferred from known facts, those facts must be such as to permit as the only reasonable conclusion that of negligence.

If the only evidence was the physical characteristics of the path and the minor's proximity to it, the Authority's argument would have force. But there are additional circumstances at bar. The activity of the two children around the edge of the steep incline; the fact that the incline was slippery due to wetness and, above all, the very short time which elapsed from the time the minor disappeared and when he was seen trying to crawl back up the path after having been under the train, all point to but one reasonable inference. That inference is that he slipped at the top of the wet incline and fell headlong down it, winding up under the wheels of the train. This, coupled with the dangerous nature of the path, adequately supports the jury's conclusion of negligence on the part of the Authority.

The defense of release.

The adult plaintiff entered into a lease with the Authority for the occupancy of 759 Townsend Place, a dwelling located in the Authority's housing project. At the time the adult plaintiff applied for housing, she signed the usual lease prepared by the Authority.

This lease, which she testified she did not read, contained a provision by which she agreed to release the Authority 'from liability for any injury to the tenant or the members of his household, resulting from any cause whatsoever,' except for injury resulting from the willful acts of the Authority's employees.

Upon the basis of this release provision, the Authority argues that the claim of the adult plaintiff for medical expenses caused by the injury to her son has been barred. No defense based upon the release provision is asserted with respect to the claim for damages by the minor plaintiff.

The plaintiff argues that the release pro vision is null and void since the Authority engages in a public purpose, viz., the furnishing of low-cost housing. Under this circumstance, it is argued, public policy forbids that such a corporation contract for immunity from negligent injury caused by its employees in performing the public service for which the corporation was formed. Cited in support of the argument are Housing Authority of Birmingham Dist. v. Morris, 244 Ala. 557, 145 So.2d 527, and Restatement of Contracts, § 575. To the contrary, the Authority relies upon Marshall v. Maryland D. & V. Ry. Co., 1 W.W.Harr. 170, 112 A. 526; Pan American World Airways, Inc. v. United Aircraft Corp., 3 Storey 7, 163 A.2d 582, and Smoke v. Turner Construction Co., D.C., 54 F.Supp. 369.

We do not reach the question because we think it clear that, assuming the validity of the release provision, nevertheless its effect must be confined to the physical premises actually leased to the adult plaintiff. This conclusion flows from the general rule that contracts to relieve one from the consequences of his own negligence are not favored in the law and, if possible, will be construed not to confer immunity from liability. We recognized this rule as being the law of Delaware in Pan American v. United Aircraft Corp., supra. If such is the rule with respect to contracts between parties not performing a public service, it applies even more forcibly to contracts between parties, one of whom is charged by law with the performance of a public service. Prosser on Torts (3rd Ed.), p. 456, et seq.

Since the minor plaintiff's injuries, creating the medical expenses for which the adult plaintiff seeks damages, did not occur on the premises leased, it follows that the release provision does not bar recovery.

The defense of sovereign immunity.

The Authority argues that it is a state agency and, thus, is entitled to raise the defense of absolute immunity to suit, either in tort or contract. The plaintiffs, to the contrary, argue that the Authority is either a municipal corporation or a corporate entity responsible in damages for the torts of its employees. If it is a municipal corporation, say the plaintiffs, the Authority is liable for this particular tort because it was committed in the Authority's proprietary capacity rather than its governmental capacity.

The doctrine of sovereign immunity to suit is written into the Constitution of Delaware by Article I, § 8, Del.C.Ann. It is an absolute...